FILED

United States Court of Appeals

Tenth Circuit

July 27, 2011

UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 11-4068

ISIDRO RIOS-TAPIA,

(D.C. No. 2:10-CV-01149-TS and

2:08-CR-00141-TS-2)
(D. Utah)

Defendant-Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.

Isidro Rios-Tapia seeks a certificate of appealability (COA) pursuant to 28

U.S.C. 2253(c)(1) in order to challenge the district courts denial of his 28
U.S.C. 2255 motion to vacate, set aside or correct sentence. Because RiosTapia has failed to satisfy the standards for the issuance of a COA, we deny his
request and dismiss the matter.
I
Rios-Tapia was indicted on March 12, 2008, on a single count of
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.

This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.

 841(a)(1) and (b)(1)(A). On September 17, 2009, Rios-Tapia, represented by

counsel, entered a plea of guilty to the single count charged in the indictment. On
April 5, 2010, the district court sentenced Rios-Tapia to a term of imprisonment
of 120 months, the statutory mandatory minimum sentence applicable to his
offense. Rios-Tapia did not file a direct appeal.
On November 18, 2010, Rios-Tapia filed a pro se motion pursuant to 28
U.S.C. 2255 to vacate, set aside, or correct sentence. In that motion, Rios-Tapia
asserted that his counsel rendered ineffective assistance during the [district
court] proceedings . . . . ROA, Vol. 1 at 30. To begin with, Rios-Tapia asserted,
his [c]ounsel misinformed [him prior to entry of his guilty plea] about his
qualification for the Safety Valve even though counsel had all the information
regarding [his] prior conviction. 1 Id. at 22. Alternatively, Rios-Tapia argued
that his counsel erroneously predicted that Rios-Tapia would get a sentence
between 4 and 7 years, id. at 25, and by predicting a lower sentence that was
not allowed by statute, prevented Rios-Tapia from reach[ing] or negotiat[ing] a
different type of plea agreement with the government. Id. at 22. In addition,
Rios-Tapia alleged that, after he was sentenced, his counsel misled him regarding
the availability of a sentence reduction based on an alleged Rule 16, and

More specifically, Rios-Tapia alleged that his counsel told him that he
qualified for what [counsel] called the safety valve, and because of that, [RiosTapia]s sentence most likely would be 7 years. ROA, Vol. 1 at 28 (emphasis in
original).
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misled him and his sister regarding [his] sentence and time to be served. Id. at
31.
On March 21, 2011, the district court issued a memorandum decision and
order denying Rios-Tapias motion. In doing so, the district court rejected on the
merits Rios-Tapias arguments that his counsel was ineffective for allegedly
misinforming him as to (a) the availability of safety valve relief, and (b) the
likely length of his sentence. Further, the district court concluded that RiosTapias remaining two claims of ineffective assistance ha[d] been waived by
[Rios-Tapia] based on the collateral appeal waiver contained in his plea
agreement. Id. at 70.
On April 11, 2011, Rios-Tapia filed a notice of appeal. Rios-Tapia has
since filed with this court a pleading entitled Petitioners Memorandum of Law
in Support of Preliminary Informal Brief, which we construe as his opening brief
and application for COA.
II
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). In other words, the denial of a 2255 motion may be appealed only
if the district court or this court first issues a COA. 28 U.S.C. 2253(c)(2). In
turn, a COA may be issued only if the applicant has made a substantial showing
of the denial of a constitutional right. Id. To make that showing, the applicant
must demonstrate that reasonable jurists could debate whether (or, for that
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matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted).
Notably, Rios-Tapia makes no attempt to satisfy these standards. Indeed,
Rios-Tapia makes no mention in his opening brief of any of his original claims of
ineffective assistance of counsel. Instead, he asserts in his opening brief a host of
new issues: (1) the district court failed to properly advise [him] of his
constitutional and Rule 11 rights, Aplt. Br. at 11; (2) he entered into an invalid
waiver of his right to appeal his sentence, id. at 34; (3) the governments evidence
was insufficient as a matter of law to convict him, id. at 36; (4) the indictment
was defective and insufficient for several reasons, id. at 41; (5) the sentence
imposed by the district court was greater than necessary to effectuate the goals of
18 U.S.C. 3553(a), id. at 45; and (6) his eneligibility [sic] for minimum
security confinement, drug program, and prerelease custody as a result of his
status as a deportable alien constituted significant mitigating factors that should
have been considered by the [district] court, id. at 54.
Given Rios-Tapias sole focus on these newly asserted issues, we conclude
he has failed to establish his entitlement to a COA on any of the ineffective
assistance of counsel claims that were asserted below in his 2255 motion.
Moreover, having conducted our own independent review of the record in general,
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and the district courts memorandum decision and order in particular, we are not
persuaded that reasonable jurists could debate whether Rios-Tapias 2255
motion should have been resolved in a different manner or that the issues raised
therein were adequate to deserve encouragement to proceed further.
The request for a COA is DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe

Chief Judge